Cover Page
The handle http://hdl.handle.net/1887/36505 holds various files of this Leiden University dissertation
Author: Boonen, Cris Anne Title: Borders in dispute : the construction of state and nation in international diplomacy Issue Date: 2015-12-02 Chapter 5 A Sociological Analysis of Practices in Boundary Politics: Professionals of Politics and Territoriality in the Yugoslav Federation
How do diplomatic actors manage the implications of sovereignty changes for international borders in the context of specifc negotiations? Te crisis in the Socialist Federal Republic of Yugoslavia in 1991 was a moment open to defne practices in boundary politics. Te uti possidetis principle prevailed; the state dissolved with its successor states maintaining the republican boundaries. But the territory of one of these successor states, the Republic of Bosnia and Herzegovina, was de facto divided between ethnic communities only fve years later. Tis means that while boundaries were ofcially drawn in conformity with the uti possidetis principle, their efects contradict this prevailing practice. In order to understand this apparent anomaly, it is necessary to analyse the agents and the social processes through which they established these territorial arrangements in the negotiation process. It then appears that diferent groups of negotiators had diferent conceptions of peace and order. Tey identifed diferent security threat(s) related to territories and populations for which they found alternative solutions. A particular set of professionals of politics supporting a doxa against the creation of nation-states gained authority frst to defne outcomes in the Yugoslav crisis without territorial changes. Yet military representatives infuenced the practice of boundary politics after nationalist violence broke out challenging this territorial arrangement in Bosnia and Herzegovina. It was through the military justifcation of defensibility that the nationalist vision ultimately became acceptable as the ‘feasible’ or ‘realistic’ outcome.
In this chapter, I analyse how the possibilities to manage sovereignty change upon the emergence of the Yugoslav crisis were narrowed down
117 to one territorial arrangement in line with the uti possidetis principle. I argue that boundary maintenance was the outcome of an international negotiation process structured on the idea that creating nation-states by means of territorial adjustment was undesirable for international peace and order. Tis doxa prevailed among professionals of politics in the European Community as a response to the violence in the Yugoslav federation in July 1991. Te hostilities foregrounded the association of boundary change with irredentism and a disruption of international order rather than dispute settlement. Particularly representatives facing aggressive nationalism in their home states then sided with Ministers of Foreign Afairs Gianni de Michelis and Hans-Dietrich Genscher in their early calls for boundary maintenance. De Michelis and Genscher had shown particular proponents of European integration in negotiations for the 1992 Maastricht Treaty. In line with this prioritisation of territory over population, they unequivocally rejected accommodating nations in the break-up of Yugoslavia. Te belief that creating nation-states was ‘out of date’ and would open a ‘Pandora’s box’ of territorial changes elsewhere then convinced their colleagues to abandon the idea of boundary redrawing in Yugoslavia after violence had broken out.
Tis response to violence in Yugoslavia defnitively oriented the development of the territorial arrangement in the direction of boundary maintenance when the EC Ministers of Foreign Afairs established the EC Conference on Yugoslavia. Under the lead of German Minister of Foreign Afairs Hans-Dietrich Genscher, they mobilised a delegation of (former) politicians and civil servants to formulate a territorial arrangement, while they engaged a commission of lawyers trained in constitutional law at the initiative of French Minister of Foreign Afairs Roland Dumas (pressured by his President’s former Minister of Justice and President of the Constitutional Council Robert Badinter). Te procedures of selection by the EC Ministers of Foreign Afairs remain unclear. Participants prove unwilling to discuss the matter openly while minutes of deliberations are absent or classifed. Yet it is clear in line with the principal-agent approach that these actors were all likely and sometimes demonstrated supporters of statehood defned by political unity, so detached from nationalist sentiments of territorial adjustment, in accordance with what the ministers had coordinated on. Tey then structured the negotiation process towards independence of the territorial units in the Yugoslav federation. Tey set boundary maintenance as a (legal) condition for negotiation and strictly controlled who spoke when and with whom to leave the option of
118 territorial adjustments of the table. Tis gave the EC Ministers of Foreign Afairs the opportunity in December 1991 to materialise maintenance of the republican boundaries despite continued objections raised by President Milošević of the republic of Serbia.
Tese fndings are at odds with existing explanations. Realists in International Relations theory like Krasner (1999) and Coggins (2011) theorise accurately that boundary maintenance originates with powerful actors in international diplomacy, yet the international negotiations concerning Yugoslavia’s dissolution show that they might be misguided on the underlying mechanism. A detailed analysis of the international negotiation process demonstrates that integrationist EC Ministers of Foreign Afairs did not change behaviours by means of tacit or explicit coercion; attitudinal changes were based in beliefs or doxa on to the creation of nation-states. Professionals of politics generally shared association that irredentism needed to be curtailed for international peace and order, so once violence broke out in Yugoslavia, they agreed to respond by maintaining boundaries. Tis security map remained largely unquestioned among the professionals of politics in Europe; it was not based on pure rational choice and refrained them from settling with the Serbs, who constituted the second-largest ethnic community in Bosnia and Herzegovina, in the territorial arrangement. Te politicians believed in boundary stability as a remedy for state break-ups in nation-states.
Analysis of the negotiation process furthermore reveals that there was not initially the broad agreement on outcomes expected in norm- driven accounts of the practice of boundary politics. Many mainstream constructivist and English School theorists such as Fabry (2010) argue that norms of international legitimacy settled in the 1960s and early 1970s and extended into the post-Cold War era to guide behaviour. Hence “international diplomacy never seriously explored [change of borders] in any contentious cases prior to recognition of the new states,” Fabry (2010: 205) writes. But boundary maintenance was in fact not the expected outcome from the start in diplomacy on the Yugoslav federation. Until violence escalated in mid-July 1991, a snapshot of the process included negotiations that could well have led to a reconsideration of republican boundaries in contrast with a norm on territorial stability. It was in fact only when the association with nationalism spread that adherence to the uti possidetis principle became the only possible outcome for European professionals of politics.
119 And boundary maintenance did not serve as a simple rule or ‘focal point’ or lowest common denominator for negotiators, as neoliberal institutionalists like Zacher (2001) and Carter and Goemans (2011) argue. “[U]ncertainty is minimised for both local actors and leaders when borders they have previously coordinated on become the new international borders,” Carter and Goemans (2011: 284) claim. Whether this is true or not, at close look at the international negotiation process reveals that the political leaders of the Yugoslav republics at no point all considered it true. Te uti possidetis principle did hence not minimise uncertainty, nor did it reduce the transaction costs in the negotiation process. With the (former) politicians and civil servants and the commission of lawyers in the EC Conference on Yugoslavia, the EC Ministers of Foreign Afairs in fact invested signifcantly to set boundary stability as a precondition for negotiation between the Yugoslavs exactly because the president of the later Republic of Serbia did not subscribe to the principle.
My account fundamentally distinguishes from these existing explanations in its emphasis on actors in addition to context in order to develop how practices were constructed in boundary politics. A focus on context leads theorists in International Relations literature to consider as objective the efects of confict in the international territorial order or the system of international norms on practices. Yet I fnd that these efects are interpreted in practice by negotiators on the basis of their socialisation in networks and practices. People with diferent social backgrounds tend to defne diferent threats to peace and order and hence take diferent stances on territorial arrangements. Tis stance-taking can only be understood if one reconstructs the negotiators’ past experiences that are actualised in the context of particular negotiations. To then understand how particular stances shape practices, we need to consider their interactions in context, which means that we need to study the agents and the social processes through which they establish practices in managing a specifc territorial dispute.
In this chapter, I analyse frst how boundary maintenance became the only ‘realistic’ outcome in Yugoslavia’s dissolution for professionals of politics in the European Community. I fnd that consensus was reached frst among directors general of political afairs. Quickly following the disruption of violence in the Yugoslav space, particularly representatives of states facing secessionism supported ‘integrationist’ Ministers of Foreign Afairs Gianni de Michelis and Hans-Dietrich Genscher in rejecting state break-
120 up in homogeneous nation-states as ‘outdated’ and dangerous for peace and order. I then continue in the second and third section by exploring how the professionals of politics mobilised this security map to pave the way for adherence to the uti possidetis principle. I trace that the Yugoslavs were ofered territorial statehood by a team of civil servants, which was supported by a commission of constitutional lawyers. Legal traditionalism and occupational experience in politics positioned these actors in line with the EC Ministers of Foreign Afairs. Tis leads to the conclusion that boundary maintenance upon dissolution of the Yugoslav federation was fundamentally based in the doxa of EC Ministers of Foreign Afairs against the creation of nation-states, which was enforced in the negotiation process.
European professionals of politics and a threat to international order
Early discussion on boundary maintenance
Early international diplomacy concerning the crisis in Yugoslavia was characterised by attempts to prevent state break-up. Soviet Foreign Minister Bessmertnykh said during his April 1991 visit to Belgrade that he considered the territorial integrity of Yugoslavia “one of the essential preconditions for the stability of Europe,” while representatives of the Bush Administration steadfastly supported maintenance of the state’s territorial unity (Cohen, 1993: 215). And when Ministers of Foreign Afairs assembled in the EC Council of Ministers on 28 June in Luxembourg, Gianni de Michelis initiated a ‘Troika’ mediation mission to leave in the afternoon to resolve the crisis through revived presidential appointment of Croatian representative Stipe Mesić and suspended implementation of the declarations of independence in line with the June 8 ‘EC Statement on Yugoslavia’ (Tanner, 1997: 251).62 Scheduled the next day with rotation of the EC Presidency to lose his membership of this Troika,63 De Michelis
62 Te June 8 ‘EC Statement on Yugoslavia’ stipulates that “[t]he normal rotation of the federal Presidency, negotiations on the future constitutional structures, respect for human rights in all parts of the country, a strengthening of the democratic process as well as the pursuit of the economic reform programme of Prime Minister Marković, will permit a new dimension to relations between the Community and Yugoslavia in accordance with the traditional ties that unite them” (Trifunovska, 1994: 286). 63 Te Troika was traditionally composed of De Michelis himself as the past president of the European Council on Foreign Afairs and his colleagues Hans van den Broek and
121 used his last opportunity to mobilise a European Community diplomatic strategy to prevent territorial reconstruction of Yugoslavia.
Gianni de Michelis had as Minister of Foreign Afairs of Italy since 1989 invested in the foundations of the European integration process. He had towards the end of 1990 convened an Extraordinary European Council meeting and two Intergovernmental Conferences in Rome on political union and on monetary and economic union that launched the process towards the 1992 Maastricht Treaty (General Secretariat of the Council, 2012: 14). Tinking in terms of transfer of authority from the state to the supranational and intergovernmental level, he had little understanding of movements for the opposite fragmentation or ‘balkanisation’. For him and other ferce proponents of European integration like Jacques Poos, “it went against their whole philosophy” to see nationalism defeat a federation in the middle of Europe.64 “Te realities of global interdependence are a fait accompli,” De Michelis (1990) wrote in the Los Angeles Times in March 1990. And while he envisioned political integration to include the Eastern European states after the collapse of communism, he noted the end of nationalism or racism and fragmentation: “All that is certain for now is the obsolescence of the nation-state”.
As such, he was the frst one who spoke out against a change of republican boundaries upon dissolution of the Yugoslav federation. In line with his prioritisation of territory over population in the negotiation process for integration into a European Union that would coordinate a common foreign and security policy between member states, he objected to accommodating nations in the fragmentation of a state in the Yugoslav space. His German colleague Hans-Dietrich Genscher, who had also proven a supporter of transferring powers further from populations in the European integration process, supported him on boundary maintenance. In a Berlin statement, the Serbian leadership was called upon to “fnally come to the realisation that the world has changed. […] Fighting for supremacy will not be accepted” (Jahn, 1991).
Some others proved more willing to explore whether the Yugoslavs could reach consensus on boundary changes in line with the expressed desires of President Slobodan Milošević of the republic of Serbia and President
Jacques Poos as the current and next EC presidents. 64 Interview with Richard Lewis
122 Franjo Tuđman of the republic of Croatia. Preparing for formulation of the second phase of the EC intervention after the Troika mediation mission had failed, representative of the Dutch EC Presidency Director-General for Political Afairs Peter Van Walsum for example sent out a message to his colleagues on 13 July 1991 suggesting the voluntary redrawing of Yugoslavia’s republican boundaries as “a possible solution” (Owen, 1995: 32).65 Tis idea proved acceptable to Danish Director-General for Political Afairs Hans Henrik Bruun and was supported by bureaucrats under the lead of Christopher Hulse at the British Foreign Ofce Eastern European Department in earlier briefng papers. Hence while much of the existing literature understands maintenance of boundaries in the case of Yugoslavia’s dissolution as paradigmatic of a trend towards territorial stability, the early phase of the international negotiation process shows a much more complex and contradictory pattern. Te option of redrawing boundaries was in fact on the table until mid-July 1991 in contradiction with such a trend.
Tis opposition to the necessity of boundary maintenance claimed by Gianni de Michelis and Hans-Dietrich Genscher mirrored diverging stances on peoples’ autonomy in European integration. Te proponents of a voluntary redrawing of boundaries in Yugoslavia all worked for ministers that had proven hesitant to advance political integration along the lines set out by Gianni de Michelis. Te British Foreign Secretary Douglas
65 In a COREU (Correspondence Européene, the telegram style through which professionals communicated in the European Community) message, Van Walsum wrote for developing “a common position which may serve as guidance for possible Troika involvement in the Yugoslav negotiation process”: 1. We seem to agree that it is not possible for Yugoslavia to continue to exist with its present constitutional structure intact. Te joint declaration of Brioni clearly states that a new situation has arisen in Yugoslavia. 2. It is equally difcult to imagine that Yugoslavia could peacefully dissolve into six independent republics within their present borders. Both Serbia and Serbian elements in the federal administration – not least the JNA – have made it plain that they will never tolerate the emergence of an independent Croatia with 11 per cent Serbs within its borders. 3. A loosely structured Yugoslavia consisting of six sovereign republics is not likely to assuage these Serbian concerns either. Te higher the degree of sovereignty for Croatia, the greater the need for solid guarantees for the Serbian minority in Croatia. Te looser the federal structure, the more difcult it will be to supply such guarantees. 4. Te foregoing seems to point in the direction of a voluntary redrawing of internal borders as a possible solution (Owen, 1995: 31-33).
123 Hurd and Minister of State for Foreign and Commonwealth Afairs Douglas Hogg had said in June 1991 to fear the extended Community’s competence under the 1992 Maastricht Treaty and maintained that supranational cooperation would not work for foreign and security policy (White, 2009: 128). Douglas Hurd expressed to his colleague EC Minister of Foreign Afairs that he feared the European Commission would penetrate the “nooks and crannies” of British life particularly through immigration policies (Oakley and Brock, 1991). Te Danish Minister of Foreign Afairs Ufe Ellemann-Jensen then made sure that the fnal draft of the 1992 Maastricht Treaty contained a referendum in which the Danes voted ‘no’ a year later. Polls showed a great attachment to ‘Danishness’ and self-determination, which made a majority of voters sceptical of devolving sovereignty to Brussels (Barnes, 1992). Hence considerations of territorial changes in Yugoslavia were grounded in these ministers’ more general prioritisation of population over territory.
Diferent conceptions of security threats
Teir diferent understanding of the relationship between territory and peoples led the directors general of political afairs of Denmark and the United Kingdom to support Peter van Walsum in his initiative for a voluntary redrawing of Yugoslavia’s republican boundaries. Peter van Walsum raised the idea of territorial adjustment seeing such changes in light of negotiation on a border that settled disputes prior to independence. Boundary changes were for him a way to provide stability and certainty in terms of (political) position and entitlements for the Yugoslavs, establishing “states where everyone knows where he stands” rather than ethnically pure states (Van Walsum, 2001: 77-78). In fact, having more than twenty years of experience being posted as a civil servant in South-Eastern Europe frst in 1967, Van Walsum based his proposal exactly on the fear that “some other party” would unilaterally change boundaries to create nation-states after he read in the Financial Times that Milošević and Tuđman had talked about dividing up the territory of the republic of Bosnia and Herzegovina (NIOD, 2002: 63).
A similar understanding of boundary changes as dispute settlement had informed eforts by the British Douglas Hogg and his Assistant Under- Secretary of State for Soviet Union and Eastern Europe Michael Tait earlier that year when they visited Yugoslavia. Just like Peter van Walsum,
124 these professionals of politics had considered deliberation on territorial adjustments a means forestall nationalist aggression in Yugoslavia rather than to accommodate it. Redrawing boundaries “could prove a difcult and complicated exercise” and “the prospect of such an action made blood in Western Europe run cold” unless it was done by means of arbitration, they held, but they found the Yugoslav presidents “reasonable” people with whom they could do business to reconcile demands short of aggression for fragmentation in nation-states (Glaurdić, 2013: 555). Tey identifed escalation of diferences by the Yugoslav People’s Army as the “destabilising element,” particularly once it would act to unite the Yugoslavs (Glaurdić, 2013: 551).
Gianni de Michelis and Hans-Dietrich Genscher had in contrast associated calls for boundary changes in Yugoslavia with the creation of nation-states, which they considered in opposition to the peace and order in Europe. “Attempts at disintegration, or fragmentation out of fear and uncertainty, are negative reactions to interdependence, manifest as protectionism, ethnic nationalism and religious fundamentalism” that characterised the “Dark Ages”, De Michelis (1990) had written in the Los Angeles Times in March 1990. Tis association with aggressive forms of nationalism became more widely shared among professionals of politics in the European Community with images of tanks on the streets, refugee columns and attacks on civilian targets to ethnically cleanse specifc territories towards the end of July 1991. Te Director-General of Political Afairs from France Jacques Blot and his Spanish colleague then joined the Ministers of Foreign Afairs of Italy and Germany in rejecting the idea of redrawing boundaries in line with ethnic patterns of settlement (NIOD, 2002: 65). Tey faced secessionism in Corsica and in the Basque regions and Catalonia respectively and proved particularly inclined to oppose the creation of nation-states in the Yugoslav federation upon the outbreak of violence there.
Tat such creation of nation-states was ‘out of date’ and would open a Pandora’s box forcing a change of boundaries in response to nationalism in the Soviet Union, which was about to disintegrate, and perhaps destabilising regions in Africa or even in Europe with its “patchwork structure”66 then convinced their colleagues to abandon Van Walsum’s idea of boundary redrawing in Yugoslavia (Tweede Kamer der Staten-Generaal,
66 Interview with Christiaan Kröner
125 2000: 10). Van Walsum remembers that his message was “torpedoed” by his colleagues.67 Te professionals of politics were hence not coerced to change behaviours, nor were their attitudinal changes based on the pure rational choice, as both realists and neoliberal institutionalists theorise. Professionals of politics rather shared association that irredentism threatened international peace and order, so they agreed on the basis of beliefs or doxa to respond by maintaining boundaries once violence foregrounded this association in Yugoslavia. Te directors general of political afairs and their Ministers of Foreign Afairs have indeed shown a largely unquestioned attitude against boundary changes. Territorial stability was what Van Walsum’s deputy Christiaan Kröner calls their “basic instinct”68. Kröner found that many professionals of politics considered territorial changes to create states along ethnic patterns of settlement claimed in Yugoslavia “primitive,” which unifed their stances against changes to the republican boundaries under nationalist war.69
A fnal response to aggressive nationalism
Te option of boundary changes was decisively discarded at the following meeting of EC Ministers of Foreign Afairs on 29 July 1991. In an efort to forestall aggressive nationalism, the Ministers of Foreign Afairs’ stances converged on boundary maintenance in Yugoslavia; there was little to no discussion on the alternative, which was discredited in the integrationist framework of the European Political Cooperation (EPC) where the ministers met to coordinate their policies (Tweede Kamer der Staten-Generaal, 2000: 22-23).70 Neither the Dutch Minister of Foreign Afairs Hans van den Broek nor Deputy Director-General Political Afairs Christiaan Kröner, who attended the Ministerial Meeting in Peter van Walsum’s absence, raised their colleague’s note for a voluntary redrawing of the republican boundaries. Te Danish Minister of Foreign Afairs Ufe
67 Interview with Peter van Walsum 68 Interview with Christiaan Kröner 69 Interview with Christiaan Kröner 70 Te EPC was an independent body for intergovernmental coordination of foreign policies rather than an integral part of the European Community. Te terms of cooperation in the EPC were stipulated in the 1986 Single European Act, which was integrationist also in its clause that representatives of the member states should “avoid any action or attitude which reduces their efectiveness as a cohesive force in international relations or within international organisations”.
126 Ellemann-Jensen or his British colleague Douglas Hurd also chose not to reiterate their colleagues’ support for this idea. Rather, Ellemann-Jensen dismissed it as ‘bureaucratic fexibility’ that he considered unsustainable at the political level.71 “We have an enormously strong presumption in favour of existing boundaries,” Douglas Hogg stated only a few months later (Simms, 2003: 11-12), while Van den Broek described Van Walsum’s message as containing ‘several options’ to deny that it pointed in the direction of boundary change (Tweede Kamer der Staten-Generaal, 2000: 22). Te idea had by then become “unrealistic,” Kröner remarks, and “diplomacy is the art of the practical”.72
Te ministers’ engagement in the process of territorial integration in Europe contributed to reaching this eventual consensus on boundary maintenance. Te EC President and Dutch Minister of Foreign Afairs Hans van den Broek in general subordinated management of the Yugoslav crisis to the integrative process in the European Community. With the development of the 1992 Maastricht Treaty on the table for completion within his term of presidency, Van den Broek had dismissed the disintegration of Yugoslavia in preparing for his time in ofce. Te bureau for Eastern Europe that had to deal with both the Yugoslav federation and the Soviet Union in the Dutch Ministry of Foreign Afairs was reduced in size under his authority and counted no more than three ofcials in the summer of 1991 (De Graaf, 2004: 142). Van den Broek then often excluded this bureaucracy from interactions with his foreign counterparts (NIOD, 2002: 46), declaring later that he subordinated knowledge to keeping the standpoints of the EC Ministers of Foreign Afairs on the same line in preparation for the 1992 Maastricht Treaty (Tweede Kamer der Staten-Generaal, 2000: 23). In fact, by some accounts he “lost interest” when he realised that there was not going to be a diplomatic success concerning Yugoslavia during his term as EC President of Foreign Afairs and concentrated on the integration instead.73
So the idea of redrawing boundaries in the Yugoslav federation was discarded on the basis of the unquestioned beliefs of EC Ministers of Foreign Afairs that creating nation-states by means of territorial adjustment threatened the international order. Te ministers’ interests difered when calls for
71 Interview with Ufe Ellemann-Jensen 72 Interview with Christiaan Kröner 73 Interview with Richard Lewis
127 disintegration emerged in Yugoslavia, with EC Ministers of Foreign Afairs and their representatives who prioritised population over territory in European integration proving more willing to explore whether the Yugoslav political leaders could settle disputes through boundary changes than their colleagues. Yet the outbreak of violence in Yugoslavia in July 1991 foregrounded the beliefs already expressed by the integrationists among professionals of politics at the European Community. Calls for boundary change were increasingly associated with the creation of nation- states after unilateral actions had been taken for forced displacement and ethnic cleansing in the Yugoslav federation – an association that converged stances of professionals of politics in opposition to boundary changes. Boundary maintenance in Yugoslavia hence developed from a history of negotiations in which the option of redrawing boundaries was explored but discarded in responses to violence for territorial adjustment in correspondence with ethnic patterns of settlement in the Yugoslav federation.
European professionals of politics and their reinforcement through negotiations
Boundary maintenance in the EC Conference on Yugoslavia
After the European professionals of politics had agreed to disallow boundary changes in the Yugoslav federation, particularly President Milošević of the republic of Serbia maintained that secession in Yugoslavia necessarily entailed a redrawing of the republican boundaries. He considered nations and not republics subjects of the right to secession under the 1974 Constitution, which meant that Serb nationals living across the republican boundary would have the right to join the republic of Serbia upon independence (Wynaendts, 1993: 66). Also President Tuđman of the republic of Croatia, with whom Milošević allegedly met in the spring of 1991 to determine a boundary between the two republics that carved up the republic of Bosnia and Herzegovina, expressed discontent with the existing republican boundaries. Minister of Foreign Afairs Hans-Dietrich Genscher then prepared for the meeting with his colleagues on 27 August 1991 to initiate an EC-sponsored conference involving all the Yugoslav parties (Both, 2000: 113). As part of an efort to regulate the disintegrative process and to instil the need to maintain the administrative boundaries in the Yugoslav political leaders, the structure of this conference permitted
128 a choice between continuation as a Yugoslav federation and independence of the republics, leaving the option of territorial adjustments of the table.
Te EC Conference on Yugoslavia opened on 7 September 1991 in Te Hague. A month earlier, the EC Ministers of Foreign Afairs had issued a public statement stressing the inviolability of internal in addition to international boundaries in Yugoslavia (Trifunovska, 1994). EC President and Dutch Minister of Foreign Afairs Hans van den Broek reiterated this point at the end of the conference’s opening session. He commented that there should be “no changes in existing Yugoslav borders by force or unilateral decree and the agreement of all Yugoslav parties to any such changes” and ensured as such that negotiations would evolve on this basis (Drozdiak, 1991: A31). After he met chairman of the conference Lord Carrington, President Tuđman, President Milošević and Defence Minister of Yugoslavia Veljko Kadijević, he made public in a press conference on 4 October 1991 three principles that necessarily formed the basis of a solution, which the chairman repeated in his ‘Statement to the Parties’ at the tenth plenary session in Brussels on 9 March 1992: no unilateral border changes, protection of minority rights and full respect for all legitimate interest and aspirations in political pluralism (Ahrens, 2007: 47). Tese principles combined advanced the inviolability of borders while they underscored the need to accommodate peoples internally.
Boundary maintenance in the case of Yugoslavia was hence not a ‘focal point’ – that is, a simple and clear rule that minimises uncertainty and reduces the transaction costs in a negotiation process – that negotiators agreed upon as a lowest common denominator against the difculty of redrawing boundaries, as Carter and Goemans (2011) argue. Political leaders in the confict did not agree and a specifc group of actors invested importantly to establish in their negotiations that the republican boundaries needed to be maintained. Te EC Ministers of Foreign Afairs under the lead of President of the European Council of Foreign Afairs Hans van den Broek set boundary stability as a precondition for negotiation upon the founding of the EC Conference on Yugoslavia, in opposition to desires expressed particularly by President Milošević of the republic of Serbia to allow peoples rather than republics the right to secede from the Yugoslav federation.
In line with the prescriptions, the republican borders were not subject of discussion in this conference. “Te only thing on the table at that phase
129 of the conference was an arrangement based on the existing borders,” the conference chairman’s personal secretary and the assistant to the chairman of the working group on minority rights recount. It was ofcially up to the international negotiators to translate the basic principles into a coherent and concrete proposal for a solution, and the Lord Carrington’s personal secretary confrms that they considered boundary maintenance “the starting point” of negotiations with the Yugoslav parties.74 Conference coordinator Henry Wynaendts, who took the lead in drafting the proposal, also held that any agreement that he and his colleagues proposed needed to be a representation of this principle established by the EC Ministers of Foreign Afairs as a framework for the negotiations. Indeed, international negotiators at this stage tended to understand their task as assisting the parties by making substantive suggestions in line with their mandate rather than as mediating on the basis of ideas brought to the table by the representatives of the Yugoslav parties. Wynaendts captured this when he noted that he introduced a clause on minorities’ special status as an instrument to obviate discussion on boundary changes.75 He hence considered himself a ‘formulator’ rather than a mere ‘mediator’ of a settlement for the crisis in Yugoslavia.
A confguration for territoriality and civic nationhood
Te social constitution of the conference stimulated this dynamic for implementation of the ministers’ mandate. First of all, professionals of politics remained in charge by assigning coordination of the conference to Boutros Boutros Ghali, Cyrus Vance and Marrack Goulding as representatives of the United Nations and the EC Ministers of Foreign Afairs. Daily supervision was then delegated to chairman Lord Carrington and deputy chairman Tierry de Beaucé. Tey were not only in frequent contact with the politicians; they also shared professional experience in a European state’s politics and had proven to oppose the creation of nation-states in past assignments. Tierry de Beaucé had experience as Secretary of State attached to the French Minister of Foreign Afairs, where he was in charge of international cultural afairs and francophony, and he worked as special advisor in charge of African afairs for President François Mitterrand at the time of the Yugoslav crisis. Lord Carrington
74 Interview with Paul Sizeland 75 Interview with Henry Wynaendts
130 was a retired Minister of Foreign Afairs of the United Kingdom and he had in this position negotiated the terms of the independence constitution of Zimbabwe in 1980. He had overseen the transition from white-led Rhodesia to majority-led Zimbabwe. Tey had hence both worked to develop statehood characterised by political unity and civic bonds, so detached from nationalist sentiments of territorial adjustment. As such, they were likely candidates to support the European professionals of politics in boundary maintenance as a response to nationalist violence in the Yugoslav federation.
Te task of negotiation under their chairmanship was delegated to civil servants who had demonstrated familiarity with the politicians’ defnitions of state- and nationhood in other processes of state formation. Te chairmen of the working groups on succession issues and institutions and minority rights, Henry Darwin and Geert Ahrens respectively, both were constitutional lawyers that had worked for their Ministries of Foreign Afairs. Tey were hence acquainted with the constitutional processes of representation common in the European Community member states in contrast with the need to adjust boundaries for representation of ethnic communities. Henry Darwin had notably shown this before being assigned to the EC Conference on Yugoslavia in his role as legal adviser to a diplomatic mission concerning Cyprus’ independence in the 1960s. He had been involved in drafting the 1960 London and Zürich Agreements that allocated government posts and public ofces by ethnic quotas rather than permitted a change of boundaries to create nation- states in Cyprus. Also a lawyer by training, the chairman of the working group on economic relations, Jean-François Durieux, had notably been in a position to watch the efects of nationalism in refugee movements and policy as a Protection Ofcer for the United Nations High Commissioner for Refugees in amongst others Sudan, Djibouti and Canada. He had in this position proven committed to protect peoples by law rather than territorial separation (Durieux, 2008: 331).
Tese working group chairmen in the structure of the EC Conference on Yugoslavia responded to Henry Wynaendts, who was assigned the position of conference coordinator as a representative of the Dutch EC Presidency. Henry Wynaendts had a long career working for the Dutch Ministry of Foreign Afairs, gaining position as Van den Broek’s confdant and trouble-shooter (Freriks, 1991). He had as a special envoy led negotiations prioritising relations with China over Taiwan and authorising a return of Tamil refugees to Sri Lanka in the 1980s. So just
131 like the working group chairmen, Henry Wynaendts was experienced in diplomatic representation of a European state in which position he had proven committed to constitutional processes of representation. Hence the international negotiators at the EC Conference on Yugoslavia as well as their chairman Lord Carrington and coordinators from the United Nations and the European Community were likely and often proven supporters of the idea that aggressive forms of nationalism needed to be addressed within existing state boundaries in line with ideas expressed by the EC Ministers of Foreign Afairs in July of 1991.
In line with logics of principal-agent interaction developed by scholars such as Hawkins et al. (2006) and Pollack (2003; 2007), the ministers as such minimised the risk of losses where the negotiators would act independently of their mandate. Changing boundaries was indeed “a non-starter” in the negotiation process, member of the working group on minority rights Richard Lewis recounts. It was discarded as a proposition among themselves as international negotiators without much, if any, discussion in line with their principal ministers’ preferred outcome. “Tere was no discussion about boundary changes,” Lord Carrington’s personal secretary confrms.
As the conference coordinator, Henry Wynaendts associated calls for boundary change in Yugoslavia with the creation of nation-states, just like the EC Ministers of Foreign Afairs had done. President Milošević of the republic of Serbia wanted to establish a ‘Greater Serbia’, he explains, and thus fought to occupy all areas in the Yugoslav federation where Serbs were a majority.76 In light of this development, he wrote to the Dutch Ministry of Foreign Afairs, “boundary changes must be excluded”.77 Lord Carrington’s personal secretary similarly presented boundary changes in light of President Milošević’s desire to create a Greater Serbia. Te anticipated threat of creating such nation-states to international peace and order convinced many of boundary maintenance in Yugoslavia. A change in the republican boundaries “would throw all the ethnic balls in the air,” Richard Lewis says, thereby expressing the association with irredentism and a disruption of international order that had paved the way to consensus among EC Ministers of Foreign Afairs a few months earlier. Lord Carrington confrmed during a visit to Italy in January 1992 that
76 Interview with Henry Wynaendts 77 ABZ, DDI/DEU/ARA/00081 Henry Wynaendts, 1991
132 accommodation of nationalism in Yugoslavia was dangerous in a Europe “inhabited by a host of nationalities and races, often crossed by artifcial borders” (“Carrington Says Yugoslav Crisis”, 1992).
Lord Carrington rather believed in boundary stability as a remedy for nationalist violence. He stated the day after Hans van den Broek had made public that boundary maintenance was a condition for negotiation that this had removed the motive for fghting. “What we must hope is that now […] good sense will prevail,” he said (“Documentation: A History”, 1992: 49). Tis means that the rejection of boundary changes in negotiations was not grounded in coercion, or in pure rational choice. Te international negotiators generally shared beliefs against the creation of nation-states; they considered territorial changes to accommodate nationalists in Yugoslavia not really an option. “You could not choose anything else,” Richard Lewis says, capturing the absoluteness of their beliefs.
A structure of negotiations to discourage territorial change
Chairman Lord Carrington then tightly regulated negotiations with Yugoslavia’s federal and republican leaders and foreign ministers on this basis. He defused disputes by organising closed-door ‘tête-à-tête’ meetings, which formed the basis of negotiations in plenaries that never lasted more than two hours (Crnobrnja, 1996: 195). Te Yugoslav political leaders did not have time and space to discuss among themselves and in the plenary sessions, they were managed in strict speaking time and alphabetical order to minimise discussion (International Criminal Tribunal for the Former Yugoslavia, 2002: 11223). Ambassador of the Federal Republic of Yugoslavia to the European Community Mihailo Crnobrnja sensed that “he carried out negotiations as if he was conducting them between British Lords,” expecting the Yugoslav political leaders to respect the boundaries of diplomatic interplay.78 Indeed, both secretary of the EC Conference on Yugoslavia Jola Vollebregt and Richard Lewis capture this style of negotiations when they refer to the Yugoslavs as “gentlemen”79 or “very
78 Interview Mihailo Crnobrnja. José Cultieiro, who worked with Lord Carrington at the EC Conference on Yugoslavia after the federation’s dissolution, described Lord Carrington as an “old-fashioned Englishman” who organised negotiations where someone “keeps his word and expects others to do the same” in Te Spectator of 11 September 1991. 79 Interview with Jola Vollebregt
133 intelligent human beings, [not] Hitlers or that kind”80. Tis shows again that boundary maintenance was not simply a ‘focal point’. If it had indeed been the lowest common denominator, these investments to manage both speakers and content in the negotiations would have been redundant against alternatives that were considered too complicated. Te problem facing Lord Carrington was exactly that the Yugoslavs did not all believe territorial change was complicated.
Yet this structure of negotiations did as such not only difuse disputes between Yugoslav politicians, it also denied others such as representatives of the armies and minority communities that were striving to change boundaries in the Balkans an opportunity to raise alternatives in the context of the conference. Representatives of Serbs in the Serb Autonomous Regions of Krajina and Slavonia, Baranja and Western Srem in the republic of Croatia, supported by ofcials from the Yugoslav National Army and the Serbian irregular forces in the republics of Croatia and Bosnia and Herzegovina, notably strived to change boundaries. Upon the failure to maintain the Yugoslav federation, they worked to establish a ‘mini-Yugoslavia’ of ‘federated Serbian state’ with borders around majority Serb areas and including areas that were strategic for territorial control (International Criminal Tribunal for the Former Yugoslavia, 1996: 282- 283). Milan Babić, the unrecognised ‘president’ of the Krajina region, for example, held that autonomous regions should be given the status of a ‘free territory’ – a position that the representatives of the Bosnian Serbs like Radovan Karadžić would also adopt six months later (Wynaendts, 1993: 138-139). And spatial planners assembled in a working group in Sarajevo after the proclamation of the Serb Autonomous Regions in Croatia and Bosnia and Herzegovina explored the possibility of reorganising the Yugoslav space in functional regions centred on large towns near the end of 1991 (Klemenčić, 1994: 34). Yet these alternatives did not reach the negotiation table. Te negotiations in the EC Conference on Yugoslavia revolved around the choice between survival of the Yugoslav federation and the republics’ sovereignty.
Te outcome of the frst round of negotiations in this setting was the 1991 Carrington Draft Convention, which Lord Carrington presented to the Yugoslav political leaders in the sixth plenary session on 18 October 1991. It contained the right to secession as Yugoslavia’s republics “within the
80 Interview with Richard Lewis
134 existing borders, unless otherwise agreed” in line with what the EC Minsters of Foreign Afairs had agreed in July 1991. EC President of Foreign Afairs Hans van den Broek, who had engaged to make boundary maintenance a condition for negotiation from the opening of the conference, reiterated upon the proposal’s presentation that boundary changes “were not an option” (Gow, 1997: 57). National or ethnic groups were rather ensured protection under the international framework of human rights and minority rights. If they formed majorities in defned areas, such groups would under the 1991 Carrington Draft Convention enjoy a special status that permitted them to have national emblems, an autonomous political structure and an educational system that respected the values and needs of the group. Tis represents commitment under Lord Carrington’s chairmanship to states as political entities rather than organisations founded on nationalism. Tey establish multinational societies where minorities are represented and protected by the constitution, in line with the agenda that the ministers had agreed upon.
Hence after the EC Ministers of Foreign Afairs had agreed to disallow territorial changes in July 1991, they laboured under the lead of EC President and Dutch Minister of Foreign Afairs Hans van den Broek to structure international negotiations with the Yugoslav political leaders on this basis. Van den Broek announced boundary maintenance as a basic principle of negotiation and the ministers ensured reiteration of these principles in the process through maintaining both direct and indirect control in the EC Conference on Yugoslavia. Tey delegated the task of negotiating with the Yugoslavs to a team of (retired) politicians and civil servants who just like the EC Ministers of Foreign Afairs dismissed boundary changes immediately and defnitively for association with irredentism and a disruption of international order. Chairman Lord Carrington then maintained tight control over the negotiation process and directed the draft peace agreement within the frame of boundary maintenance. Alternatives were denied on the table. Boundary maintenance in Yugoslavia hence developed from intense labour in support of the widespread belief among European politicians and civil servants that redrawing boundaries was dangerous in response to nationalist violence.
135 European professionals of politics and their reinforcement through law
An Arbitration Commission to settle internal disputes
Signing of the peace proposal failed. President Milošević of the republic of Serbia and eventually also President Bulatović of the republic of Montenegro maintained that Lord Carrington too easily accepted the dissolution of the Yugoslav federation with the secession of the republics of Slovenia and Croatia (Wynaendts, 1993: 135-136). He had agreed a few days earlier in Te Hague “in the framework of a general settlement, recognition of the independence, within the existing borders, unless otherwise agreed, of those republics wishing it,” but he did not accept the federation’s dissolution unless the Yugoslav peoples expressed consent in accordance with the 1974 Constitution (Trifunovska, 1994: 363- 365). Chairman of the EC Conference on Yugoslavia Lord Carrington then referred the delimitation of boundaries to a group of constitutional lawyers that were assembled in an Arbitration Commission commonly referred to as the ‘Badinter Commission’. French Minister of Foreign Afairs Roland Dumas had initiated the idea of an arbitration commission; he had exchanged it for support of the EC-sponsored conference with German Minister of Foreign Afairs Hans Dietrich-Genscher at the end of August 1991 to gain agreement by the EC Ministers of Foreign Afairs (Both, 2000: 113). As part of an efort to regulate the disintegrative process and to instil the need to maintain the administrative boundaries in the Yugoslav political leaders, the ministers put arbitration forward as a substitute to violence.
In the EPC Extraordinary Ministerial Meeting of 27 August 1991, Roland Dumas advanced the need to create an ad hoc organ to resolve legal and thereby political problems expected with the dissolution of the Yugoslav federation. In the absence of established mechanisms for dealing with intrastate conficts, he wished to create a juridical body to which authorities of the EC Conference on Yugoslavia could submit their diferences (Blockmans, 2013: 143-144). Te idea of creating a permanent ‘European Court of Conciliation and Arbitration’ in the framework of the Commission on Security and Cooperation in Europe (CSCE) had then already been raised by Robert Badinter, who was the former Minister of Justice and President of the Constitutional Court under French President François Mitterrand. He had advocated in Le Monde on 21 June 1991
136 the need to found a European Court of Justice based on international law that could adjudicate on disputes concerning among others linguistic, religious and cultural issues (Badinter, 1991). Such a confict management institution, he argued, could guarantee the safeguarding of peace and thus possibly prevent outbreaks of violent confict like in Yugoslavia. His President François Mitterrand and Minister of Foreign Afairs Roland Dumas, who were both trained lawyers, had notably shown in favour of Badinter’s idea of a European system of dispute settlement (Schneider and Müller-Wolf, 2007: 15). So when the opportunity came for Robert Badinter to ‘legalise’ the dispute settlement process concerning Yugoslavia, he pushed his involvement to advance his agenda of a European Court of Conciliation and Arbitration.81 He met with chairman of the EC Conference on Yugoslavia in Paris on several occasions too discuss while his assistant Dominique Rémy-Granger remained in close contact with the representative of the European Commission Richard Lewis at the EC Conference on Yugoslavia.82 Lord Carrington then asked the members of the Arbitration Commission in November 1991 to adjudicate on a number of issues including whether the republican boundaries could be regarded as borders in terms of public international law upon the dissolution of the Yugoslav federation.
Boundary maintenance in the Arbitration Commission
Several international lawyers found boundary maintenance not a legal principle for secession. Professor of international law Benedict Kingsbury for example argued in 1992 that such legalisation “exhibits an amalgam of often contradictory and unreconciled considerations about existing law, order, and justice” and “is not fully consistent with practice” (Kingsbury, 1992: 505; 507). His colleague Hurst Hannum similarly called it “dubious” to identify a rule of international law for boundary maintenance outside the colonial context and critiqued the reading of history underlying this legalisation (Hannum, 1993: 66). Yet these experts in the law related to recognition and succession were excluded from the negotiation process, even though the diferences that were referred to the
81 Te Court of Conciliation and Arbitration was eventually created under the Stockholm Convention on Conciliation and Arbitration of December 1992. Robert Badinter became the President of this court, which convened for the frst time in May 1995. 82 Interviews with Paul Sizeland and Richard Lewis
137 Arbitration Commission in November 1991 concerned international law. Te members of the Arbitration Commission referenced principles of international public law and peremptory norms of general international law as guidelines, and they included cases in international courts as legal precedents in their published Opinions (Pellet, 1992). But membership was restricted to “fve members chosen from the Presidents of the Constitutional Courts existing in the Community countries” in line with the ‘Declaration on Yugoslavia’ adopted by the EC Ministers of Foreign Afairs on 27 August 1991 at the initiative of Roland Dumas (Trifunovska, 1994: 334). Tis again exemplifes the signifcant investment of the EC Ministers of Foreign Afairs to avoid agency losses and guide negotiations toward boundary stability.
Te Arbitration Commission was composed of lawyers who were trained and experienced in constitutional law: Robert Badinter from France, Roman Herzog from Germany, Aldo Corasaniti from Italy, Francisco Tomás y Valiente from Spain and Irène Pétry from Belgium. Legal adviser to the Arbitration Commission Andrey Liakhov positions these fve constitutional lawyers among legal traditionalists such as Alfred Verdross, Georg Jellinek and Hersch Lauterpacht. He explains that legal traditionalism compelled the members of the Arbitration Commission to consider state succession a political rather than a legal act.83 International law did not guide processes of secession beyond codifcation of the conditions of statehood stipulated in the 1993 Montevideo Convention on Rights and Duties of States – that is, a territory, a permanent population and a government capable of entering into international relations (e.g. Lauterpacht, 1944; Jellinek, 1914). Te republics of the Yugoslav federation by the end of 1991 all qualifed as ‘states’ under this reading of international law, which meant that unilateral or violent changes to their boundaries were legally unacceptable. Changes to the republican boundaries under these circumstances required political agreement to be efectuated and was not guided in legal provisions. Andrey Liakhov describes that the members of the Arbitration Commission hence considered their principal task was “to help the politicians understand legal implications of their actions”.84
Indeed taking politics rather than law as guiding in considerations, the Spanish member of the Arbitration Commission Francisco Tomás y
83 Interview with Andrey Liakhov 84 Interview with Andrey Liakhov
138 Valiente then introduced boundary maintenance. He was in charge of drafting Opinion No. 3 in response to Lord Carrington’s question concerning the status of the republican boundaries and concluded that agreement on boundary adjustments was impossible to reach between the Yugoslav political leaders without a retreat to violence.85 As the President of the Constitutional Court in Spain and professor in the history of law, he believed that states needed to be protected for law and rights to prosper over chaos (Gallego, 1996: 10). He saw the constitutional order threatened in Spain by nationalism in ethnic communities. Boundary maintenance would protect the states created upon dissolution of the Yugoslav federation against such nationalism, he held, and the other members of the Arbitration Commission agreed that this would thus calm tensions down. “If everyone enforces boundaries that have existed for some time, there is no reason to go to war,” legal adviser Andrey Liakhov explains, while “if anything else was adopted, it would [have resulted] in another spark of violence”. As such, the lawyers unanimously decided in afrmation of the defnition of statehood reinforced by the EC Ministers of Foreign Afairs.
As such, they followed inspirer legal traditionalist Hersch Lauterpacht, who had under similar circumstances shown an opponent of accommodating nationalism with territorial adjustments. On 16 November 1938, less than two months after the Munich Agreement had been signed codifying Nazi Germany’s annexation of portions of Czechoslovakia along the border that were inhabited by German-speaking populations, he gave a speech at the League of Nations Union of Cambridge University. He posited that “a comprehensive and professionally administered system of cosmopolitan law and order in the image of the liberal state” was the means to overcome aggressive nationalism and disorder of the fn de siècle (Koskenniemi, 1997: 217). Lauterpacht identifed the First World War and the nationalism that had provoked it as a disturbance of peace and order advanced by the process of state integration in to a world federation (Koskenniemi, 1997: 217). In line with ideas that Gianni de Michelis and Hans-Dietrich Genscher had frst claimed among EC Ministers of Foreign Afairs in early 1991, Hersch Lauterpacht had thus in his academic work proven critical of nationalism as a threat to international order.
85 Interview with Alain Pellet
139 And this idea was advanced in the Arbitration Commission particularly by members who had professional experience in politics. Robert Badinter, Roman Herzog and Irène Pétry had “a very strong position” upholding boundary maintenance in response to nationalist violence as “bringing some sense of order” and removing territorial claims as a motive for war.86 In contrast with the other two members of the Arbitration Commission, they had experience with political in addition to legal considerations of state functioning. President of the Constitutional Court in Belgium Irène Pétry had a long career striving for equality of rights as a member of the Socialist Party to become Secretary of State for Cooperation and Development in a multinational federated state in 1973, while Roman Herzog had taken tough stances in enforcing the rule of law as the Minister of Interior of Baden-Württemberg between 1980 and 1983. Roman Herzog had in the late 1980s demonstrated notable interest in state development with his book ‘Staaten der Frühzeit’ [loosely translated, ‘Primitive States’], in which he describes states characterised by central authority and limited popular freedom for defence. He then identifed nationalism and fundamentalism as the main threat to peace and order in Europe in his speech before the 41st Meeting of Historians in Munich in 1996, when he referenced Ernest Renan and Ernest Gellner saying that “nations are not a God-given way of classifying men”.
Chairman Robert Badinter, who had acted to promote civil liberties as the Minister of Justice before he became the President of the Constitutional Court of France, had also demonstrated strong beliefs against the creation of nation-states. In his publication in Le Monde in June 1991, he (1991) identifed nationalism as the principal threat in Europe. He considered Europeans to have entered a new stage of history in which they had overcome their ideological and political diferences in favour of a shared belief in human rights and pluralist democracy. Te peoples of Europe now for the frst time saw their future from this ‘European’ perspective and that, Robert Badinter argued, needed to be protected from opposite forces of nationalism. As such, Robert Badinter, Roman Herzog and Irène Pétry were likely candidates to support boundary maintenance on the basis of a political assessment of the crisis situation in the deliberations with other members of the Arbitration Commission. Indeed, legal adviser Andrey Liakhov identifes them as having “very set views” against
86 Interview with Andrey Liakhov
140 boundary changes.87 Tese views of the constitutional lawyers were again not grounded in coercion, or in pure rational choice; rather, they were grounded in a belief that they shared with the principal EC Ministers of Foreign Afairs and the international negotiators in the EC Conference on Yugoslavia that boundaries should not be changed in light of aggressive nationalism.
Legal justifcation in the uti possidetis principle
In coordination with legal adviser Alain Pellet, Francisco Tomás y Valiente then moved beyond the mandate by connecting boundary maintenance to the international legal principle of uti possidetis that had been applied earlier in decolonisation. He described it in Opinion No. 3 as “a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs” (Pellet, 1992: 185). Te members of the Arbitration Commission did not organise hearings with the Yugoslav parties, in spite of requests by among others President Milošević of the republic of Serbia, yet Alain Pellet recalls having “no doubt” about this decision to introduce the uti possidetis principle to maintain boundaries in Yugoslavia. He considered boundary change a “triumph of ethnic cleansing” while he held that maintenance of the republican boundaries created an opportunity for reason to prevail over aggressive nationalism or “ethnic hate”.88 In agreement with the members of the Arbitration Commission, his assessment for referring to the uti possidetis principle was hence inspired by the desire to avoid war rather than an interpretation of international law.
By deciding to introduce the uti possidetis principle for stability of the republican boundaries upon Yugoslavia’s dissolution, the members of the Arbitration Commission positioned international law in support of the stance that professionals of politics had reinforced in the EC Conference on Yugoslavia. As such, they gave boundary maintenance a status beyond politics and outside the realm of Yugoslavia. Indeed, the principle gave a legal justifcation for the political assessment towards maintenance of boundaries not only within the Arbitration Commission. After the Opinions had been published, negotiators in the EC Conference on
87 Interview with Andrey Liakhov 88 Interview with Alain Pellet
141 Yugoslavia regularly invoked the authority of the uti possidetis principle or the Arbitration Commission to endorse respect for boundaries. Tis contrasts earlier practices of boundary politics in Latin America and Africa, where the uti possidetis principle had been referenced in relation to independence only after decolonisation within existing boundaries had taken efect. Te legal justifcation gave the EC Ministers of Foreign Afairs the opportunity in December 1991 to materialise boundary maintenance. Under the lead of Hans-Dietrich Genscher, they recognised the republican boundaries as the international borders of the Republic of Croatia and Slovenia despite continued objections raised by President Milošević of the republic of Serbia. “We strongly objected to the decision of the Badinter Commission that internal boundaries would be international frontiers,” his Minister of Foreign Afairs Vladislav Jovanović recalls.
Constitutional lawyers thus provided legal legitimation of boundary maintenance after politicians and civil servants had failed to negotiate an agreement between the Yugoslav political leaders. Te EC Ministers of Foreign Afairs had upon founding of the EC Conference on Yugoslavia already agreed to create a commission of constitutional lawyers to settle internal disputes. When conference chairman Lord Carrington then asked them in November 1991 to formulate an opinion on the status of the republican boundaries in international law, they followed the EC Ministers of Foreign Afairs and their deputies in the conference in dismissing boundary changes based on a political assessment of the situation in the Yugoslav federation. Particularly those members who shared an occupational background in politics shared the belief widespread among European professionals of politics that territorial adjustment in response to nationalist violence threatened international order. But all members were legal traditionalists who understood politics rather than law as guiding in considerations, which led them to enforce boundary maintenance. Others were denied access to the Arbitration Commission under the authority of the ministers. Tis investment defnitively discarded the option of redrawing boundaries and legitimated the EC Ministers of Foreign Afairs to recognise the Yugoslav republics within existing boundaries.
Conclusion
Boundary maintenance in Yugoslavia was hence the outcome of a negotiation process that the European professionals of politics structured
142 on the basis of their aversion of creating nation-states. After violence broke out in July 1991, the association with irredentism spread and the EC Ministers of Foreign Afairs increasingly shared the idea that territorial adjustments would disrupt the international peace and order. Tey hence concluded in their following meeting on maintenance of the republican boundaries to forestall aggressive nationalism in Yugoslavia. At the initiative of Hans-Dietrich Genscher and Roland Dumas, the EC Ministers of Foreign Afairs then invested to structure the international negotiations towards boundary stability. Tey established the EC Conference on Yugoslavia and the Arbitration Commission composed of likely and sometimes demonstrated supporters of statehood characterised by political unity, so detached from nationalist sentiments of territorial adjustment. Legal traditionalism and occupational experience in politics positioned the civil servants and constitutional lawyers in line with the EC Ministers of Foreign Afairs, minimising the principals’ risk of losing their agents to actions in discord with their preferences in practice. Tey reinforced boundary maintenance in the negotiation process, ultimately legitimising the EC Ministers of Foreign Afairs to advance recognition on this basis in December 1991 despite President Milošević’s objections.
Alternatives existed. Some representatives of Serb communities outside the republic of Serbia as well as ofcials from the Yugoslav National Army and experts of international law expressed opposition to boundary maintenance, while several less ‘integrationist’ professionals of politics in Europe explored boundary revision before large-scale violence erupted, yet their alternatives were discarded in the negotiation process. Tis indicates that boundary maintenance was not the outcome of an international norm, as Fabry (2010) argues, or a ‘focal point’ that negotiators subscribe to as a means to minimise uncertainty and reduce the transaction costs of secession, as Carter and Goemans (2011) hold. Te EC Ministers of Foreign Afairs in fact invested signifcantly to set boundary stability as a precondition for negotiation. Teir eforts were however not grounded in tacit or explicit coercion of advocates of the territorial alternatives, as Krasner (1999) and Coggins (2011) theorise. It was rather the outcome of the doxa on to the creation of nation-states, which ministers who prioritised territory over population also in the European integration process like Gianni de Michelis and Hans-Dietrich Genscher expressed early in the negotiations concerning Yugoslavia’s dissolution. Te professionals of politics in Europe generally shared beliefs against accommodating irredentism for its threat to international peace and order, so the association of violence
143 with irredentism in Yugoslavia inspired their agreement to respond by maintaining boundaries.
It thus matters in boundary politics who manages to control the process of negotiations. People with diferent social backgrounds tend to interpret context diferently; they may defne diferent threats to peace and order and hence take diferent stances on territorial arrangements. If in fact the spatial planners familiar with maps of geography and settlement patterns in the Yugoslav federation, the military experts experienced in managing violent disputes, or the lawyers knowledgeable of the international law related to recognition and succession had infuenced in the negotiation process, diferent boundaries might have been drawn in the Yugoslav federation.
Despite this situational condition of the introduction of boundary maintenance in post-colonial practices of boundary politics, it set a precedent for more recent cases of territorial change. Tis implies that contemporary practices in line with the uti possidetis principle are grounded in a largely unquestioned association of territorial change with irredentism and a belief about the disruption of international peace and order that prevailed among professionals of politics in Europe in the early 1990s. Tese commonplaces may however misrepresent conditions in contemporary cases. Many territorial disputes have resulted in violence within the confnes of existing states since the dissolution of Yugoslavia, which sometimes could arguably have been prevented or resolved by boundary changes. In fact, boundary maintenance in the Yugoslav federation itself did not calm nationalism down but rather preluded the outbreak of violence in the Republic of Bosnia and Herzegovina the following year. Disagreement over the boundaries continued among the Yugoslavs beyond the international recognition of republican boundaries in December 1991, with particularly President Milošević insisting to redraw boundaries. Tis violence contradicted the expectations of the professionals of politics in Europe. Te next chapter explores how in Bosnia and Herzegovina this resulted de facto in abandonment of the republican boundaries for partition along ethnic lines fve years later.
144